Volume 144 — Vermont Reports

<bold>1. Judgments — Acquittal — Motion</bold> In ruling on a motion for judgment of acquittal, the standard is whether the evidence, when viewed in the light most favorable to the state, is sufficient to convince a reasonable trier of fact that defendant is guilty beyond a reasonable doubt. <bold>2. Motor Vehicles — Operation Under the Influence — Elements</bold> A person is considered to be under the influence of intoxicating liquor when he or she has lost full control over the faculties of<page_number>Page 316</page_number> mind and body; the measure of that loss is immaterial. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2). <bold>3. Motor Vehicles — Operation Under the Influence — Evidence</bold> In the case of defendant found guilty of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, where the evidence showed that defendant operated slightly left to the center left of the highway, failed to stop at a "CRASH" road block despite a signal to the contrary, although defendant cooperated during the processing and the officer observed that her speech was normal, her balance steady, her walking and turning sure and her coordination good, defendant did have a detectable odor of alcohol on her breath, her eyes were glazed, during processing she was emotional and mumbled an obscenity at the officer and an alco-sensor test revealed an excess of .10 percent of alcohol in her blood, trial court did not err in denying defendant's motion for judgment of acquittal. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2). <bold>4. Evidence — Intoxication — Opinions</bold> In the case of defendant found guilty of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, trial court did not err in allowing arresting officer to testify as to his opinion that defendant was under the influence of intoxicants, since the officer testified that his opinion was based on the odor of alcohol on defendant's breath and her emotional state and, therefore, a sufficient foundation for such opinion evidence had been shown. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2). <bold>5. Appeal and Error — Motion for New Trial — Discretion of Trial</bold> <bold>Court</bold> A motion for new trial based on the insufficiency of the evidence is solely within the discretion of the trial court, and absent a showing that there was an abuse of discretion or that the court's discretion was withheld, supreme court will not overturn the trial court's decision. <bold>6. Motor Vehicles — Operation Under the Influence — Evidence</bold> In the case of defendant found guilty of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, trial court's denial of motion for new trial, based on insufficiency of evidence, was clearly within its discretion and without error, where the evidence showed that defendant operated slightly left to the center left of the highway, failed to stop at a "CRASH" road block despite a signal to the contrary, had a detectable odor of alcohol on her breath, her eyes were glazed, during processing she was emotional and mumbled an obscenity at the officer and an alco-sensor test revealed an excess of .10 percent of alcohol in her blood. <cross_reference>23 V.S.A. § 1201</cross_reference>(a)(2). <bold>7. Motor Vehicles — Alcohol Tests — Use</bold> The results of a preliminary breath alco-sensor screen test indicating impairment, although inadmissible as evidence, may provide<page_number>Page 317</page_number> a reasonable ground to believe that a person is under the influence of intoxicating liquor and, in addition, may be used to determine whether more accurate testing is appropriate. 23 V.S.A. §§ 1201 (a)(2), 1202(b). <bold>8. Motor Vehicles — Alcohol Tests — Admissibility</bold> In the case of defendant found guilty of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, trial court was without error in denying motion to suppress evidence in connection with breath alcohol test which revealed an excess of .10 percent of alcohol in defendant's blood where the officer had reasonable grounds to request the test. 23 V.S.A. §§ 1201(a)(2), 1202(b).